Scholars Crossing

Faculty Publications and Presentations Liberty University School of Law

8-2007

Preacher Man v. Porn King: A Legal, Cultural, and Moral Drama Starring Jerry Falwell, Larry Flynt, and the First Amendment

Tory L. Lucas Liberty University, [email protected]

Follow this and additional works at: https://digitalcommons.liberty.edu/lusol_fac_pubs

Part of the Law Commons

Recommended Citation Lucas, Tory L., Preacher Man v. Porn King: A Legal, Cultural, and Moral Drama Starring Jerry Falwell, Larry Flynt, and the First Amendment (August 1, 2007). Nebraska Lawyer Magazine, 22-31, August 2007.

This Article is brought to you for free and open access by the Liberty University School of Law at Scholars Crossing. It has been accepted for inclusion in Faculty Publications and Presentations by an authorized administrator of Scholars Crossing. For more information, please contact [email protected]. feature article

Preacher Man v. Porn King: A Legal, Cultural, and Moral Drama Starring Jerry Falwell, Larry Flynt and the First Amendment by Tory L. Lucas

Introduction pornographer, and one part First Amendment free speech, the combustible mixture is likely to produce a colossal legal, cultural, When the Reverend Jerry Falwell (Falwell) died on May and moral battle. That is precisely what happened between 15, 2007, numerous media reports chronicled Falwell’s life, 1983 and 1988 in the famous free-speech case of Falwell versus focusing on his religious and political contributions to Larry C. Flynt (Flynt) and Magazine (Hustler).1 American society. As lawyers, we might focus on Falwell’s legal contributions. Specifically, we should remember that Falwell Observers of the law might ask why Falwell forged a path helped produce a landmark Supreme Court to a landmark First Amendment free-speech case and provided decision on the scope of the First Amendment’s protection enormous free publicity to Flynt’s First Amendment and of speech. crusade by challenging the legality of a crude and If you take one part proselytizing, political Southern distasteful ad that Flynt published in Hustler that was a sexual Baptist televangelist, one part obnoxious, media-seeking parody of a famous Campari Liqueur advertisement. Instead of parodying Campari, however, Flynt used the ad parody to Tory L. Lucas depict Falwell as a drunken hypocrite who had engaged in Tory L. Lucas is the District sexual relations with his mother. Hoping to provide members Director for Congressman Lee of the Nebraska Bar Association with some light reading driz- Terry of Nebraska’s Second zled with legal commentary, this article will introduce the Congressional District. famous players involved in the case, discuss the case itself along Previously, Lucas was a visiting professor at Creighton University with its historical significance, and offer some commentary on School of Law, clerked for Judges why Falwell might have sued Flynt and Hustler in the first Pasco M. Bowman II and place. William J. Riley of the U.S. Court Before going any further, however, it is only responsible to of Appeals for the Eighth Circuit, served as a judge advocate in the U.S. Air Force, and warn the reader that this article contains graphic and adult was a litigation associate in private practice. Lucas received language. Any article quoting Flynt would be hard-pressed not his B.A. degree, magna cum laude, from Culver-Stockton to include some type of viewer discretion warning. In an effort College, his J.D. summa cum laude, from Creighton to diminish the extent of shocking language and to somewhat University School of Law, and his LL.M. degree from the sanitize this article for public consumption, I have taken the University of -Kansas City School of Law, where liberty of performing a bit of censoring to tone down Flynt’s he was the Arthur Mag Fellow of Law. Although it might go without saying, this article expresses the views of Tory L. rhetoric by substituting lesser offensive words for the more Lucas and does not reflect or represent the views of offensive words used by Flynt. To be sure, Flynt and Hustler felt Congressman Terry or the U.S. Congress. like they were under no obligation to self-censor and did not. With a little imagination, of course, you are free to reverse

THE NEBRASKA LAWYER 22 AUGUST 2007 Electronic copy available at: http://ssrn.com/abstract=1424683 course on my censorship by replacing my toned-down language Flynt’s outrageous and shocking ad parody of Falwell certainly with the authentic and colorful language used by Flynt. was not out of the ordinary given Flynt’s track record. Falwell’s choice of an attorney to represent him against The Players Flynt and Hustler reeks with irony. For legal representation, To better understand Falwell v. Flynt, one must understand Falwell picked Norman Ray Grutman, the New York attorney the nature of the people involved in the case. When the major made famous by representing and Penthouse players are exposed, it should have been obvious that a battle Magazine (Penthouse), a major competitor of Hustler in the royal was brewing. There can be no doubt that the players adult magazine business. An obvious reason for Falwell’s choice involved in the case made this legal, cultural, and moral battle of attorney was Grutman’s representation of Penthouse in an a prominent media spectacle. eerily similar case involving an ad parody with explicit sexual Before his recent death, Falwell was a nationally known t depictions of Miss Wyoming competing in the Miss America evangelist and fundamentalist Southern Baptist minister. Pageant. See Pring v. Penthouse Int’l, Ltd., 695 F.2d 438 (10th He founded the Old Time Gospel Hour, the Moral Majority, Cir. 1982), cert. denied, 462 U.S. 1132 (1983). Additionally, and Liberty University. He was the pastor of Thomas Road Grutman represented Penthouse and defeated Falwell in 1981 Baptist Church in Lynchburg, Va, for decades. Some credit— when Falwell sued Penthouse for printing an interview that or accuse depending on political stripe—Falwell of being a Falwell had given to two freelance journalists. See Falwell v. large part of the political movement often referred to as Penthouse Int’l, Ltd., 521 F. Supp. 1204 (W.D. Va. 1981). Christian conservatism. To be sure, Falwell constantly sought Grutman’s later receipt of legal fees from Falwell and his ways to press his religious and political beliefs in any and all religious ministry—in essence, an attorney who made his available media outlets. A federal court once described Falwell livelihood representing Penthouse receiving his fees from little as being “the central focus of abiding public interest and old church ladies—has been described as “a sort of Baptist-to- concern” who “has aggressively nurtured the public spotlight to Penthouse Iran-Contra connection.” Grutman has stated, promote and disseminate his personal views to as wide an however, that he did not charge Falwell his full rate because of audience as possible.” the principle involved. Perhaps another irony. Falwell’s nemesis, Flynt, who is still alive, also has spent a Flynt’s attorney, Alan Isaacman, has been a mainstay for lifetime nurturing “the public spotlight to promote and disseminate Flynt for years, mainly because Flynt routinely finds himself in his personal views.” While Falwell spent his life advocating his trouble with the law. Isaacman, a Harvard Law School graduate conservative religious and political beliefs, Flynt has devoted and member of an entertainment law firm in Beverly Hills, has his life to making money in the sex industry and to engaging in represented numerous Hollywood celebrities, including Lionel shocking and distasteful behavior. Flynt adoringly describes Richie, Geraldo Rivera, Jerry Lewis, and Rock Hudson. himself as the undisputed King of Porn. Flynt joined the His main client, however, has always been Flynt. It has been when he was 14 by lying about his age. said that Isaacman is a perfect fit for Flynt, because Isaacman Flynt later served in the . By the time Flynt has never subscribed to Hustler and comes across as kind of reached the age of 21, he had been bankrupt once and married boyish. Isaacman’s persona implies that he has absolutely no twice. He later founded Hustler, which has proven to be a sleaze about him, a curious and telling juxtaposition to lucrative-yet-controversial adult magazine. Flynt’s initial folly Flynt’s persona. in the sex industry began when he opened a strip bar called the Finally, even the trial judge added drama to the case. Hustler Club in . Flynt later opened a string of strip bars The trial judge in Falwell v. Flynt was Chief Judge James by the same name. To publicize the strip bars, Falwell created a Clinton Turk of the United States District Court for the newsletter bearing the same name, Hustler, and that move Western District of Virginia. Judge Turk had been the trial began Flynt’s sex empire. Within four years of turning the judge in the earlier First Amendment case in which Falwell strip-bar newsletter into a circulated magazine, Hustler reaped sued Penthouse, a case won by Grutman on behalf of Penthouse. $13,000,000 in profits and had 2,000,000 subscribers. With his Judge Turk also was the trial judge in the Penthouse case involving wealth and fame growing, Flynt commissioned a statue in his the ad parody of Miss Wyoming. Grutman again defended honor. Consistent with his desire to engage in shocking behavior, Penthouse in that case and won. the statue depicted Flynt as an eight-year-old boy losing his virginity to a chicken on his grandmother’s farm. From the The Case start, Flynt’s irreverence to anything and everything was on full What actually happened to prompt Falwell to sue Flynt display. Over the years, Hustler has published graphic sexual photographs of women and men, which may not be as shocking and Hustler, setting up a legal, cultural, and moral drama that as its publishing scenes dealing with excrement, mutilation, played out over the course of the 1980s? The November 1983 bestiality, bondage, and dismemberment. Needless to say, ➡

THE NEBRASKA LAWYER 23 AUGUST 2007 Electronic copy available at: http://ssrn.com/abstract=1424683 PREACHER MAN V. PORN KING

edition of Hustler contained a full-page ad parody implying The ad parody then had Falwell explaining that he and his that Falwell’s first sexual experience was with his mother in an mother “were drunk off [their] God-fearing asses on [a] outhouse. Centered at the top of the page in big, bold letters Campari” drink called a “Fire and Brimstone” and that his was the title, Jerry Falwell talks about his first time, with “Mom looked better than a Baptist whore with a $100 Falwell’s photograph appearing just beneath the title. A small donation.” The “Interviewer” then stated, “Campari in the asterisk appeared next to the title, referring the reader to the crapper with Mom. How interesting. Well, how was it?” very bottom of the page where, in very small letters, a legal Falwell responded that the “Campari was great, but Mom disclaimer of sorts appeared: AD PARODY—NOT TO BE passed out before I could [ejaculate].” Obviously, the ad parody TAKEN SERIOUSLY. The magazine’s table of contents implied that Falwell and his mother had sex in the outhouse. referred to this page as a parody: Fiction. Ad and Personality When the “Interviewer” asked, “Did you ever try it again,” Parody. To even the most casual observer, it should have been Falwell responded, “Sure. Lots of times. But not in the painfully apparent that Flynt and Hustler were parodying a outhouse. Between Mom and the [feces], the flies were too famous public figure. much to bear.” When the “Interviewer” stated, A Campari Liqueur bottle and a glass “We meant the Campari,” the ad parody had of Campari graced the bottom of the Falwell saying, “Oh, yeah, I always get sloshed page, along with the famous Campari before I go out to the pulpit. You don’t think advertising slogan, Campari—You’ll I could lay down all that bull[] sober, never forget your first time. Hustler based “The ensuing legal do you?” its ad parody on a very successful advertising At the bottom of the interview and campaign used to promote Campari. drama can only be above the Campari advertising slogan, Campari is an alcoholic aperitif, a type of described as bizarre . . . the ad parody again referenced Campari: bitters, that dates to 1860s Italy. At least “Campari, like all liquor, was made to since 1900, Campari has used hip and The ensuing publicity mix it up. It’s a light, 48-proof, refreshing fashionable advertising to market its product. spirit, just mild enough to make you Relevant here, Campari used a highly surrounding the case drink too much before you know you’re successful, even if somewhat controversial, schnockered. For your first time, mix it advertising campaign that involved celebrities played to the liking with orange juice. Or maybe some discussing their first time drinking Campari. white wine. Then you won’t remember Although the advertisements focused on of Flynt.” anything the next morning. Campari. Campari, each advertisement contained a The mixable that smarts.” double entendre with obvious sexual under- After Hustler published the ad parody tones, making it appear that the celebrities also of Falwell and his mother, a reporter asked were discussing their first sexual experiences. Falwell if he had seen the copy of Hustler This series of Campari advertisements gave Hustler its containing the ad parody. Falwell, of course, indignantly replied 2 motivation for depicting Falwell’s “first time.” that he had not. Curious about the ad parody, Falwell sent an The Hustler ad parody appeared to trace the Campari employee to retrieve a copy of Hustler, not wanting to go buy it advertisements’ use of sexual innuendo by having Falwell himself. When Falwell saw the ad parody, he was incensed. discuss his “first time” in the context of drinking Campari. Falwell responded by filing a $45,000,000 federal lawsuit In addition to depicting Falwell as discussing his first time against Flynt and Hustler. Falwell pressed three theories: first, drinking Campari, however, the ad parody also depicted he claimed invasion of privacy, i.e., his name and likeness were Falwell’s discussing his first sexual experience. In a question- wrongly appropriated for advertising or trade without his con- and-answer format, the ad parody began with Falwell saying sent; second, he asserted a claim of libel; and third, his “first time was in an outhouse outside Lynchburg, VA.” he claimed intentional infliction of emotional distress. With an apparent reference to Campari, Falwell then stated The ensuing legal drama can only be described as bizarre. that he “never really expected to make it with Mom, but then Rodney A. Smolla, the current Dean of the University of after she showed all the other guys in town such a good time, Richmond School of Law and the author of a book entitled, I figured, ‘What the hell!’” When the “Interviewer” asked Jerry Falwell v. Larry Flynt: The First Amendment on Trial, Falwell if it was odd that he made it with his mother, Falwell described the trial as “the sort of political and cultural drama responded, “I don’t think so. Looks don’t mean that much to me that periodically plays itself out in American courtrooms, in a woman.” reminiscent of Tennessee’s Scopes ‘Monkey Trial’ of 1925 or the battle between Abbie Hoffman and his cohorts against

THE NEBRASKA LAWYER 24 AUGUST 2007 Judge Julius Hoffman and Mayor Richard J. Daley in the intended to destroy or harm Falwell’s integrity, he responded ‘Chicago 7’ trial.” The ensuing publicity surrounding the case that his intent was “[t]o assassinate it.” According to Flynt, played to the liking of Flynt. Falwell was a glutton, a liar, and a hypocrite. Enormous Publicity Using his increasing fame and notoriety to his advantage, Flynt ran for President in 1984. His campaign slogan was A Even a casual observer of Flynt’s career might have issued Smut Peddler Who Cares. Flynt even named Jesus to replace him a warning to Falwell to be cautious in pursuing litigation as the publisher of Hustler. According to Flynt, Jesus also against Flynt. Flynt, the self-proclaimed King of Porn, has happened to endorse Flynt for President, which Flynt never met a camera he did not like nor has he ever failed to cap- described as the first time in 2,000 years that either Jesus, “the italize on an opportunity for publicity. He also has openly cru- Holy Ghost, or the Father has ever endorsed a political saded for his beliefs over the years. Falwell’s lawsuit simply candidate.”5 Needless to say, Hustler sales increased as a result fanned Flynt’s flames for publicity. of the case and Flynt’s publicity stunts. After the ad parody ran in November 1983, Falwell raised money for a legal battle against Flynt. True to form, Flynt Landmark First Amendment Battle capitalized on the controversy spawned by the lawsuit by again In addition to Falwell’s failure to heed any cautionary running the ad parody in March 1984. Instead of the ad parody warnings that Flynt would use the lawsuit to conduct a media appearing in a single issue of Hustler, the ad parody was widely circus, I assume that Grutman counseled Falwell that the First disseminated by Falwell, Flynt, and the media. Amendment would not lie dormant during Falwell’s lawsuit Once Falwell sued Flynt and Hustler, Flynt did not simply against Flynt and Hustler. Organizations and individuals devoted to lie down and defend the case on the merits. He wanted to play First Amendment causes also decided not to stand mute. it for all it was worth. On August 8, 1984, Flynt filed a federal A massive lawsuit against a magazine and its publisher over a lawsuit in California against Falwell, the Moral Majority, and parody of a public figure sent shockwaves through the First the Old Time Gospel Hour. Can you guess what the lawsuit Amendment community. Although very few organizations or claimed? Flynt claimed that Falwell infringed on Flynt’s individuals stood up publicly for Flynt’s ad parody of Falwell, copyright of the ad parody by using it to raise money for a court many organizations supported Flynt’s Constitutional fight. battle against Flynt. The drama was only in its infancy. Believing the First Amendment’s protection of free speech was It was a near certainty that Flynt was going to use the case under attack, many organizations stood to defend it. to abuse the legal process and pester Falwell. Indeed, Flynt’s Organizations later filing briefs of amici curiae with the antics during litigation are almost legendary. An enjoyable Supreme Court included the American Civil Liberties Union, movie entitled, The People vs. Larry Flynt, accurately portrayed the Association of American Editorial Cartoonists, the some of Flynt’s more notorious courtroom stunts. One of Association of American Publishers, Home Box Office, the 3 Flynt’s most famous stunts was rolling into federal court wearing Law and Humanities Institute, the Reporters Commission for the American flag as a diaper. Additionally, Flynt’s refusal to , Richmond Newspapers, and Volunteer release the infamous John DeLorean tapes regarding the Lawyers for the Arts. government’s drug bust of the famed millionaire also provided From the beginning, Falwell had an extremely challenging Flynt with substantial media coverage. Flynt’s refusal to comply with a court order resulted in his being held case to win in the face of Flynt’s First Amendment protection. in contempt. Ever since the Supreme Court decided the landmark free- speech case of New York Times v. Sullivan, 376 U.S. 254 (1964), While in jail for his conduct in the DeLorean case, Flynt it has been undisputed that the Constitution protects “freedom gave his deposition in the Falwell case. During the deposition, of expression upon public questions . . . to assure unfettered Flynt refused to refer to Falwell by his proper name. He insisted interchange of ideas for the bringing about of political and on referring to Falwell as “Farwell.”4 In addition to butchering social changes desired by the people.” The Supreme Court has Falwell’s name, Flynt would not even state his own name. declared that “a fundamental principle of our constitutional When asked to state his name, Flynt responded, “Christopher system” is the “maintenance of the opportunity for free political Columbus Cornwallis I.P.Q. Harvey H. Apache Pugh. discussion to the end that government may be responsive to the They call me Larry Flynt.” When asked if he is known as Larry will of the people.” Indeed, it has been widely recognized that Flynt, he said, “No. Jesus H. Flynt, Esquire.” Flynt also testified in his deposition that he did not write the ad parody of “a prized American privilege [is] to speak one’s mind, although Falwell, claiming Yoko Ono and Billy Idol actually wrote the ad not always with perfect good taste, on all public institutions.” parody. When Flynt was asked in the deposition whether he ➡

THE NEBRASKA LAWYER 25 AUGUST 2007 PREACHER MAN V. PORN KING

Over six decades ago, Judge Learned Hand wrote that the had openly admitted that he had intended to assassinate First Amendment “presupposes that right conclusions are more Falwell’s integrity by the ad parody, in essence conceding that likely to be gathered out of a multitude of tongues, than he had intended to inflict emotional distress on Falwell. through any kind of authoritative selection. To many this is, The jury returned a verdict for Flynt and Hustler on Falwell’s and always will be, folly; but we have staked upon it our all.” libel claim, finding that no reasonable person would have Indeed, Justice William J. Brennan, writing for the Court in believed that the ad parody described actual events. On the Sullivan, explained that America has “a profound national other hand, Grutman and Falwell secured a jury verdict for commitment to the principle that debate on public issues damages for the intentional infliction of emotional distress should be uninhibited, robust, and wide-open, and that it may claim. The jury awarded $100,000 in actual damages, $50,000 well include vehement, caustic, and sometimes unpleasantly in punitive damages against Flynt, and $50,000 in punitive sharp attacks on government and public officials.” As early as damages against Hustler. The United States Court of Appeals 1940, the Supreme Court recognized, “In the realm of religious for the Fourth Circuit affirmed. faith, and in that of political belief, sharp differences arise. Five judges of the Fourth Circuit, however, dissented from In both fields the tenets of one man may seem the rankest error the court’s denial of a petition for rehearing en banc. In an to his neighbor. To persuade others to his own point of view, eloquent, passionate, and detailed opinion penned by Judge J. the pleader, as we know, at times, resorts to exaggeration, to Harvie Wilkinson III, who has appeared on many short lists for vilification of men who have been, or are, prominent in church nominees to the Supreme Court, the dissent implored their or state, and even to false statement. But the people of this colleagues to reconsider such a monumental and important nation have ordained in the light of history, that, in spite of the free-speech case. The dissent strongly believed that the panel probability of excesses and abuses, these liberties are, in the opinion’s allowing “political figures to recover solely for long view, essential to enlightened opinion and right conduct emotional harm . . . surely will operate as a powerful inhibitor on the part of the citizens of a democracy.” of humorous and satiric commentary and ultimately affect the Thus, the Supreme Court in Sullivan held that when health and vigor of all political debate.” The dissent likened speech impacts a public official, a defamation claim—whether Falwell to a political figure because he “is at the forefront of slander or libel—relating to official conduct can only pass major policy debates; he enjoys the most intimate access to the Constitutional muster when the speech “was made with actual highest circles of power; he possesses a forum for presenting his malice—that is, with knowledge that it was false or with views and establishing his character; he has sought and relished reckless disregard of whether it was false or not.” Speech about the give-and-take of political combat.” According to the public officials not intended to be true, such as rhetorical dissent, Falwell was a member of a certain category of public hyperbole, however, is by definition exempted from defamation figures, similar to public officials, that although he did not hold claims. In the face of Sullivan, Falwell and Grutman faced public office or cast votes on policy issues, he was an integral some weighty constitutional issues in their attempt to recover part of political life in the same vein as officials who do hold damages against Flynt and Hustler for the ad parody of Falwell. public office and vote. To be sure, the dissent made clear that First, courts were confronted with the question of whether although the Supreme Court has distinguished between public Falwell, a public religious figure who often spoke about political officials and public figures whose fame is not tied to political and cultural issues, should be treated like a public official for achievements, such a distinction did not exist in a case involv- First Amendment purposes. Second, courts had to determine ing Falwell. whether a public figure could manufacture an intentional infliction Even though the dissent felt “a profound repugnance for of emotional distress claim to avoid asserting a defamation the communication” in the ad parody, believed that the ad claim that fell under Sullivan’s heightened standard. The final parody “was an utterly unwarranted and offensive personal issue involved a tricky analytical maneuver that tried to untangle attack” on Falwell, and considered Hustler to be “a singularly speech with a political purpose from speech with no purpose unappealing beneficiary of First Amendment values and serves other than to cause personal pain, i.e., speech intended to inflict only to remind us of the costs a democracy must pay for its emotional harm on the public figure. Flynt’s ad parody of most precious privilege of open political debate,” the dissent Falwell was the perfect test case for a resolution of these issues nonetheless believed that the First Amendment did not allow and for a determination of Sullivan’s reach. Falwell to recover emotional distress damages—or damages Notwithstanding long odds, Falwell was allowed to try his under any other theory—as a result of the ad parody. case to a jury. After Falwell and Flynt presented the case to the The dissent made clear that public figures such as Falwell jury, Judge Turk dismissed Falwell’s invasion of privacy claim. should expect to draw “the vehement, caustic, and sometimes But Judge Turk allowed the jury to consider the libel and unpleasantly sharp attacks” that are certain to, and are indeed intentional infliction of emotional distress claims because Flynt intended to, create emotional distress.

THE NEBRASKA LAWYER 26 AUGUST 2007 The dissent explained why free-speech principles protected “threatens to disrupt our historic reliance on [the] marketplace Flynt’s ad parody: “The reason for this is obvious. Political [of ideas] to regulate political speech.” The dissent would have satire and parody aim to distress. This genre of commentary reversed the district court’s entry of judgment on the emotional depends upon distortion and discomfiture for its effect. distress claim: “The possibility that controversial political The best political humor may be in bad taste. The cartoonist’s figures could run to court and recover for emotional distress, nightmare may be that the intended victim of all his insult and when a jury has found no false statement of fact, no libel, and ridicule indeed fails to suffer emotional distress, but instead no reputational damage, undermines the First Amendment and finds the whole thing merely funny and calls up the cartoonist, its core purpose of protecting political debate.” not to complain, but to ask for the original.” Although less than The Supreme Court viewed the case in an entirely different thrilled to protect Flynt’s speech, the dissent recognized that in light than did the district and circuit courts, instead agreeing order to adequately protect speech against public officials, with much of what was written by Judge Wilkinson. Falwell’s Flynt’s speech also had to be protected: “Nothing could be legal victory against Flynt and Hustler lasted only as long as it more threatening to the long tradition of satiric commentary took for the Supreme Court to hear and decide the case. than a cause of action on the part of politicians for emotional distress. Satire is particularly relevant to political debate Say what you want about Flynt and Hustler, but Falwell’s because it tears down facades, deflates lawsuit involved a parody of a public figure, stuffed shirts, and unmasks hypocrisy. perhaps striking near the heart and soul of By cutting through the constraints imposed free-speech rights in America. In an opinion by pomp and ceremony, it is a form of written by the late Chief Justice William irreverence as welcome as fresh air. Rehnquist, a unanimous Supreme Court While Hustler’s base parody is unworthy of “While Hustler’s base exerted little effort in reversing the this or any tradition, the precedent created by parody is unworthy of Fourth Circuit. See Hustler Magazine v. the cause of action against [Flynt and Hustler] Falwell, 485 U.S. 46 (1988). may one day come to stifle the finer forms of this or any tradition, According to the Supreme Court, this genre.” Indeed, the dissent thought that the precedent created by the case presented the “novel question” there exists nothing “more thoroughly democratic the cause of action of “whether a public figure may recover than to have the high-and-mighty lampooned damages for emotional harm caused and spoofed.” against [Flynt and by the publication of an ad parody Noting that the jury expressly found that Hustler] may one day offensive to him, and doubtless gross that no reasonable person could have believed and repugnant in the eyes of most.” that the ad parody contained actual facts about come to stifle the finer The Court wasted little time Falwell’s personal life, the dissent explained that forms of this genre.” recognizing that protecting Falwell the jury obviously took the ad parody “for what against the rhetorical ravages of is was, namely a tasteless, silly, and scurrilous bit Flynt would undermine the First of nonsense.” The dissent noted that the only way Amendment’s protection across the a public figure such as Falwell could recover from board. The Court explained that the such an ad parody would be to allow recovery whenever speech heart of First Amendment protection is “the “strayed beyond the bounds of common decency.” The dissent recognition of the fundamental importance of the free flow of was unwilling to forge this path into unchartered territory. ideas and opinions on matters of public interest and concern.” Agreeing that the defense verdict on the libel claim appropriately The Court explained that “the freedom to speak one’s mind is applied First Amendment law, the dissent implored the court not only an aspect of individual liberty—and thus a good unto to advance a legal principle that once the libel claim was defeated, itself—but also is essential to the common quest for truth and the case should have ended: “An additional action for emotional the vitality of society as a whole.” According to the Court, the distress does not belong in the hands of political figures,” First Amendment actually encourages robust political debate because “the constitutional principles of freedom of expression which no doubt tends to produce speech that is critical of preclude attaching adverse consequences to utterances other public officials and public figures who are “intimately involved in than defamatory falsehoods.” the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.” In the end, the dissent showed that allowing the tort of intentional infliction of emotional distress to proceed against a Addressing the argument that Flynt’s speech was public figure in the face of a defeated defamation claim would unprotected because it served no other purpose than to assassinate “prove a profound and ominous inhibitor of speech” and Falwell’s integrity, the Supreme Court noted that “even when➡ a

THE NEBRASKA LAWYER 27 AUGUST 2007 PREACHER MAN V. PORN KING

speaker or writer is motivated by hatred or ill will his expression facts or events. Siding with Flynt and Hustler, the Court [is] protected by the First Amendment.” The Court understood reversed the judgment in Falwell’s favor. that the First Amendment’s protection of political speech— Perhaps ironically, even Falwell never really believed he had political cartoons and satire in particular—could only continue a chance of winning. In 1997, Falwell confessed that he had unabated if the First Amendment protected Flynt’s ad parody anticipated losing at the circuit level, but he certainly was not of Falwell: “Were we to hold otherwise, there can be little surprised when he lost unanimously before the Supreme doubt that political cartoonists and satirists would be subjected Court.6 to damages awards without any showing that their work falsely defamed its subject . . . The appeal of the political cartoon or Why Did Falwell Sue Flynt and Hustler? caricature is often based on exploitation of unfortunate physical To me, Falwell had to anticipate a major legal, cultural, and traits or politically embarrassing events—an exploitation often moral battle when he filed his $45,000,000 lawsuit against calculated to injure the feelings of the subject of the portrayal. Flynt. Falwell surely knew Flynt would use Falwell’s good- The art of the cartoonist is often not reasoned or evenhanded, versus-evil lawsuit as free publicity to sell more magazines and but slashing and one-sided.” Countering Falwell’s argument engage in even more outrageous behavior. Falwell also had to that the outrageous ad parody distinguished it from political be aware that serious free-speech issues were involved and his cartoons, the Court responded, “There is no doubt that the chances of succeeding were slim. Why then did Falwell pursue caricature of [Falwell] and his mother published in Hustler is at litigation against a backdrop of major free-speech issues when best a distant cousin of [historical] political cartoons . . ., and a his opponent would have an absolute field day with the case? rather poor relation at that. If it were possible [to lay] down a Even if Falwell believed that he could prevail in his lawsuit principled standard to separate the one from the other, public against Flynt and Hustler, I believe three other reasons discourse would probably suffer little or no harm. But we doubt underpinned Falwell’s decision to bring the lawsuit. that there is any such standard, and we are quite sure that the First, Falwell sued for money. Not only was Falwell hoping to pejorative description ‘outrageous’ does not supply one. garner an outsized judgment, he also was keenly aware that he ‘Outrageousness’ in the area of political and social discourse has could raise substantial sums of money by the frequent publicity an inherent subjectiveness about it which would allow a jury to that this kind of legal, cultural, and moral battle would bring. impose liability on the basis of the jurors’ tastes or views, or Second, Falwell’s feelings were hurt because his deceased perhaps on the basis of their dislike of a particular expression. mother was depicted in Flynt’s despicable ad parody. As many An ‘outrageousness’ standard thus runs afoul of our longstanding sons might do, Falwell wanted to defend the honor of his refusal to allow damages to be awarded because the speech in deceased mother. Finally, Falwell likely pursued litigation question may have an adverse emotional impact on because he really believed that it was a fight of good versus evil, the audience.” a preacher versus a porn king. Falwell thought that it was Extending Sullivan’s reach to Falwell’s lawsuit, the Supreme unthinkable that good should cower to evil. Court held, “We conclude that public figures and public officials may not recover for the tort of intentional infliction of Money emotional distress by reason of publications such as the one Falwell, like Flynt, used the case to raise loads of money. here at issue without showing in addition that the publication Falwell’s lawsuit against Flynt and Hustler itself sought contains a false statement of fact which was made with ‘actual $45,000,000 in damages, a healthy amount today but certainly malice,’ i.e., with knowledge that the statement was false or an even healthier amount in 1983. The jury returned a with reckless disregard as to whether or not it was true.” $200,000 verdict for Falwell. As noted above, however, that Applying this principle to Flynt’s ad parody of Falwell, the accession to wealth was short-lived, but securing money from a Court explained that Falwell clearly was a public figure as legal judgment was not the only game available to Falwell. contemplated by First Amendment jurisprudence. Given the holding that public figures enjoyed no right to pursue a tangential Like Flynt, Falwell never shied away from publicity. As a tort of intentional infliction of emotional distress claim for fundamental televangelist and conservative political commentator, outrageous conduct because such a claim is inconsistent with Falwell constantly kept himself on the airwaves and in front of the First Amendment, the Court stated that the tort of his supporters for over five decades. Falwell’s reaction to Flynt’s defamation was the only available tort that Falwell could ad parody was no different—Falwell saw an opportunity to pursue to recover for harm caused by Flynt’s ad parody. raise money. Because Falwell was a public figure, any hope of recovery on his Immediately after reviewing the ad parody, Falwell went on libel claim was lost when the jury found that no reasonable a torrid publicity and fundraising campaign. His conservative person could have viewed the ad parody as describing actual political lobbying group, the Moral Majority, immediately sent

THE NEBRASKA LAWYER 28 AUGUST 2007 a letter to 500,000 members seeking contributions to help When CNN interviewer Larry King asked Falwell about Falwell pursue a lawsuit against Flynt and Hustler. The group his initial reaction to the ad parody, Falwell replied: sent another mailing to 26,900 major donors seeking at least ...my mother had ...just shortly passed, and she $500 per donor to “take up this important legal battle” to was 82 and a sweet wonderful Godly lady. I am a defend Falwell and his mother “against the smears and slander public figure like you are, and [ridicule] goes with of this major .” Within 30 days, the the territory but . . . If my mother hadn’t been in [the ad parody], it would have been just a chuckle letter to major donors alone raised $45,000. The Old Time and walked on. But with my mother, wife, Gospel Hour, which sponsored Falwell’s television and radio children . . . My reaction was this is over the line. broadcasts throughout the world, also mailed a solicitation I am a public figure, but I think—you know, nothing letter to 750,000 supporters. Over the next month, those is unlimited. The First Amendment is not without limits. supporters contributed $672,000 to Falwell’s legal crusade. Falwell’s overall fundraising campaign amassed nearly In the same interview, Flynt even recognized that if a $1,000,000 in his fight against Flynt’s pornographic machine. parody showed him having sex with his mother, he would have regarded the ad “as maybe a poor parody” and that he would Suffice it to say, Falwell used the pub- have been “hurt.” Flynt, however, was adamant licity surrounding his lawsuit to raise that although he would have been hurt, he money from his supporters. Although he would have known that the First Amendment raised vast amounts of money from the foreclosed any lawsuit. publicity, money certainly was not the only reason Falwell sued Flynt and A major motivation behind Falwell’s Hustler. “Opposing viewpoints bringing his lawsuit, regardless of its merits, the money, or Flynt’s publicity Deceased Mother’s Honor on religion and campaign, was Falwell’s anger that Flynt used Falwell’s deceased mother in a Please place yourself in Falwell’s shoes morality met head on. degrading light in order to attack Falwell. for a moment. Regardless of whether Falwall and Flynt Falwell was a public figure, no rational per- Good vs. Evil son could argue that Flynt’s ad parody would not offend the vast majority of people—at existed on the far edges Finally, whether you believe that least those with mothers. It is safe to deduce of nearly every cultural Falwell pursued litigation to win on the that Falwell pursued litigation in part merits, to raise money, or to assuage his because he was hurt that his deceased moth- and moral issue. “ hurt feelings that his deceased mother er was involved in the ad parody. also was lampooned, this case pitted good versus evil in Falwell’s mind. Describing his reaction once he learned As my title indicates, this case pitted a about the ad parody, Falwell stated that he had nationally known preacher against a “never been as angry as I was at that moment. nationally known pornographer. Cultures I somehow felt that in all my life I had never believed collided. Opposing viewpoints on religion and morality met that human beings could do something like this. I really felt like head on. Falwell and Flynt existed on the far edges of nearly weeping.” Although Hustler clearly noted that the Falwell piece every cultural and moral issue. Flynt’s ad parody was a hard was an ad parody and that it was not to be taken seriously, volley in a life-long cultural war between Falwell and Flynt. Falwell said he took it as “seriously as anything I have ever read in my life.” Frankly, who can blame him. While Flynt used the trial to engage in media-capturing theatrics and to pursue the most extreme protection under the Falwell’s subsequent fundraising campaign revealed that his First Amendment, Falwell used the case to argue that Flynt’s hurt feelings that his deceased mother was used in the ad speech at issue in the ad parody had no place in a moral parody motivated him to sue Flynt and Hustler. In a letter sent America. To be sure, Falwell viewed the case as America’s to the major donors of the Moral Majority immediately after Minister versus America’s Pimp. Viewed on a larger scale, Hustler published the ad parody, Falwell made the following Falwell saw the case as involving an eternal battle between God plea: “Will you help me defend my family and myself against and Satan. the smears and slander of this major pornographic magazine— will you send a gift of $500 so that we may take up this Ever since founding the Moral Majority, Falwell had waged important legal battle?” In a similar plea in the same letter, a crusade against secular humanism and moral relativism, Falwell asked his donors to help defend his mother’s memory. ➡

THE NEBRASKA LAWYER 29 AUGUST 2007 PREACHER MAN V. PORN KING

which he believed were at the root of everything bad in In 1997 while appearing on CNN’s Larry King Live, America. Falwell believed that the Constitution is America’s Falwell reiterated his belief that “pornography is a scourge on moral charter and reflects our character as a people. society.” In that same interview, Falwell explained, He believed America was founded as a moral nation to save a “[P]ornography hurts anyone who reads it, garbage in, garbage corrupt world. Based on these fundamental beliefs, Falwell out. I think when you feed that stuff into your mind, it definitely argued that the Constitution cannot protect destructive speech. affects your relationship with your spouse, your attitude Falwell adamantly preached that the First Amendment cannot towards life, morality.” When asked what was worse for tolerate ideas or speech repugnant to America’s core values. America, Philip Morris, the cigarette manufacturer, or Hustler, At trial, Falwell’s attorney, Grutman, constantly hammered Falwell stated, “Hustler is worse than about anything I can the theory that this case involved good versus evil. Grutman think of. This will give you heart cancer. [ Hustler] will send you consistently portrayed the case as not involving the First to hell, in my opinion.” Stated simply, Falwell used the litigation Amendment, but rather the horrible sleazy sinfulness of Flynt. against Flynt and Hustler to attack pornography. To the point, Grutman even called Senator Jesse Helms, the conservative Falwell also used the lawsuit to wage a cultural and moral North Carolina Republican, to testify that Falwell was one of battle against Flynt, pitting good versus evil. America’s greatest men of integrity. Falwell’s strategy and On the other side of the cultural and moral divide stood public theme was that good was pitted against evil in this case. Flynt, who believes the only absolute in America is absolute Immediately after the ad parody was published, Falwell free speech. He has steadfastly preached that the First began a massive fundraising effort. In a letter to supporters of Amendment protects his outrageous, indecent, and disgusting the Old Time Gospel Hour, Falwell in essence wrote that good speech. In sum, Flynt believes that the Constitution gives him must take a stand against evil: the absolute right to reject anyone’s view of absolute truth. I was ready to cut another 50-100 stations—when To that end, he has consistently labeled Falwell as a hypocrite, someone showed me a full-page liquor advertisement phony, and liar. According to Flynt, Falwell’s beliefs traveled in that appeared in the November issue of Hustler Magazine—a pornographic tabloid . . . a different solar system from Flynt’s beliefs. Flynt has openly stated that he disagrees with absolutely everything that Falwell When I saw it—I decided that, in a society containing people like Larry Flynt, the Old Time has ever preached. In fact, Flynt was diametrically opposed to Gospel Hour must remain on the air—on every Falwell and his conservative religious beliefs. Flynt has made a station . . . career out of his total irreverence to organized religion and I have established the Old Time Gospel Hour God. Because Falwell represented organized religion and God SURVIVAL FUND. to Flynt, Flynt unmercifully attacked and ridiculed Falwell and In his letter to the major donors of the Moral Majority, his beliefs. Falwell, as a religious fundamentalist, believed the Falwell explained that religious Americans must not tolerate Bible is God’s Word. Flynt, in an interview given to Vanity Fair pornographers operating without opposition: during the litigation, described his theology with shocking Sane and moral Americans all across our nation vulgarity: are outraged by how much these pornographers are getting away with these days. And pornography Matthew 16, verse 18, okay? I say also unto thee is no longer a thing restricted to back-alley book- that thou art Peter, and upon this rock I will build shops and sordid movie houses. my church. Peter was [ Jesus’ penis], the rock meant he had [an erection] and [the] church [was] Now pornography has thrust its ugly head into his philosophy—life is supposed to be one big our everyday lives and is multiplying like a filthy orgasm! And there’s only one commandment: plague. Flynt’s magazine, for example, advertises Do unto others as you would have them do unto pornographic telephone services where, for a fee, men or women will engage in an obscene phone you—but do it first. call with you! . . . In addition to his kind words on the Book of Matthew, Cable pornography with its “X”-rated and triple Flynt espoused his overall views on the Bible: “X” rated films can bleed over into a regular cable system right into your own living room . . . This is the biggest piece of [feces] ever written. It’s been [messed] with since the beginning of And there, in my opinion, is clear proof that the time. Religion’s done more harm than any other billion-dollar sex industry, of which Larry Flynt is single idea; every war since the beginning of time a self-declared leader, is preying on innocent, was the fault of religion. I mean, ask the Jews what impressionable children to feed the of they think about religion. depraved adults. For those peddlers, it appears that and greed Needless to say, Flynt’s inflamed and blasphemous rhetoric have replaced decency and morality. heated Falwell up to his boiling point.

THE NEBRASKA LAWYER 30 AUGUST 2007 Given these stark differences in fundamental beliefs, there Americans believed in God and not nearly as many purchased can be little surprise that a cultural and moral collision occurred pornography, Flynt reinvented Hustler to mix sex and religion. Flynt proclaimed that he became “a hustler for God.” Flynt’s reli- between Falwell and Flynt in addition to the legal battle that gious conversion was short-lived. had erupted. Falwell spent his entire career espousing a belief 6 It is interesting to note that another case dealing with an adult in a moral America while Flynt has spent his career tearing magazine’s ad parody had just ended a year before Flynt ran the ad parody of Falwell. Before Flynt parodied Falwell, Penthouse down those beliefs. Regardless of one’s legal, cultural, or moral had published an ad parody entitled, Miss Wyoming Saves the viewpoint, one must agree that Falwell’s case against Flynt and World, which depicted Miss Wyoming getting ready to perform Hustler fundamentally boiled down to a fight over morals—a her talent of baton twirling in the Miss America Pageant when 7 she remembered her college experience of making a football battle of good and evil. player levitate while she performed fellatio on him. While on stage in the Miss America Pageant, Miss Wyoming performed Conclusion fellatio on the baton and lost the Pageant. Nonetheless, as Miss Wyoming then considered what her poise-and-intelligence Falwell’s lawsuit against Flynt and Hustler had all of the answer would have been, she dreamed that she could “save the ingredients to make a dramatic legal, cultural, and moral battle: world” with her “real talent” of “performing” with the entire Soviet Central Committee, Marshall Tito, and Fidel Castro. nationally known media magnates with diametrically opposing Indeed, the parody had Miss Wyoming dreaming of becoming viewpoints on all cultural and moral issues; nationally known the ambassador of love and peace. Finally, the ad parody also litigators; religion; pornography; free-speech issues under the showed Miss Wyoming performing fellatio on her coach, who also levitated. First Amendment; and a landmark Supreme Court decision. The actual Miss Wyoming, Kimerli Jayne Pring (Pring), an Given the expected, enormous publicity the lawsuit would accomplished baton twirler, failed to find the humor in produce and the predictable response from the Supreme Court, Penthouse’s parody. Through her famed attorney, Gerry Spence, I believe that Falwell waged his legal battle against Flynt and Pring sued Penthouse, which happened to be represented by Grutman. Although Pring won a $26,500,000 jury verdict, the Hustler to help Falwell raise millions of dollars, to defend the Tenth Circuit Court of Appeals reversed, holding that the First honor of his recently deceased mother, and to publicly wage a Amendment protected Penthouse’s parody because any reasonable cultural and moral battle of good versus evil. Flynt obviously person would have believed it was obvious that Penthouse’s speech was complete fantasy and fiction. Thus, a defamation claim won the legal battle. As for the greater cultural and moral inherently failed. Using words that Grutman certainly had to battle, each person reading this article probably carries his/her take to heart a year later when he took Falwell’s case against own opinions and occupies a different space in that battle. Flynt and Hustler, the Tenth Circuit explained, “The [ad parody] is a gross, unpleasant, crude, distorted attempt to ridicule the With the First Amendment unflappably governing this battle, Miss America contest and contestants. It has no redeeming we can be assured that public debate will continue—even without features . There is no accounting for the vast divergence Falwell and Flynt as combatants—with little legal interference. in views and ideas. However, the First Amendment was intended to cover them all. The First Amendment is not limited to ideas, And as lawyers, we must serve as guardians of the First statements, or positions which are accepted; which are not Amendment and protectors of unfettered public debate. outrageous; which are decent and popular; which are constructive Perhaps the only constant will be that even as the issues or have some redeeming element; or which do not deviate from community standards and norms; or which are within prevailing constantly change in the greater cultural and moral battle, the religious or moral standards. Although a story may be repugnant First Amendment and its protection of speech stands firm in the extreme to an ordinary reader, and we have encountered no difficulty in placing this story in such a category, the typical against any battle that may erupt against it. standards and doctrines under the First Amendment must nev- ertheless be applied. [Penthouse] should not have been tried for its Endnotes moral standards. Again, no matter how great its divergence may 1 Some readers might feign ignorance of Hustler. To put it mildly, seem from prevailing standards, this does not prevent the Hustler is an adult magazine. In 1983, Hustler had over 2,500,000 “application of the First Amendment. The First Amendment subscribers and a pass-along readership of nearly 20,000,000. standards are not adjusted to a particular type of publication or particular subject matter.” 2 It might be interesting to note that Campari made an appearance in a movie entitled, The Life Aquatic with Steve Zissou.At one 7 Throughout their publicity battles, Falwell steadfastly predicted point in the movie, Bill Murray’s character, Steve Zissou, ordered that he would help convert Flynt to Christianity and that Falwell an intern to get him a Campari. hoped to be there to hug Flynt when it happened. Flynt vowed 3 Flynt uses a wheelchair because he is paralyzed from the waist that it would never happen and even challenged Falwell’s sincerity down. On March 6, 1978, Flynt was shot while defending an on his desire to convert Flynt. With Falwell’s recent death, it lawsuit in Gwinnett County, GA. The assassin’s bullet appears that Flynt deflected Falwell’s hopes on the conversion left Flynt in a state of paralysis and in need of a wheelchair to issue as well. After Falwell’s death, Flynt surprisingly wrote an be mobile. editorial for the Times entitled, Larry Flynt: My 4 It is interesting to note that when I ran spell checker on this article, Friend, Jerry Falwell. In the article, Flynt wrote, “I’m sure I never the recommended spelling of Falwell was “Farwell.” I imagine changed [Falwell’s] mind about anything, just as he never that Flynt would be amused with that recommended spelling. changed mine. I’ll never admire him for his views or his 5 It might be worth noting that Flynt actually experienced a opinions.” Flynt also wrote, however, that the ultimate result of religious conversion to Christianity in 1977 as a result of the his lifelong battle against Falwell was unexpected and efforts of , an evangelist who also shocking—he and Falwell had become friends. Indeed, Flynt happened to be President ’s sister. After Flynt’s described how Falwell had visited Flynt every time Falwell was religious experience, he “cried for God.” Realizing that 98% of in California and that the two men exchanged Christmas cards.

THE NEBRASKA LAWYER 31 AUGUST 2007